NATIONAL SPACE POLICY

A PRÉCIS OF FUNDAMENTALS & PURPOSE

BY:

MICHAEL J. LISTNER, ESQUIRE

FOUNDER & PRINCIPAL, SPACE LAW AND POLICY

SOLUTIONS

GENERAL CHARACTERISTICS OF

NATIONAL SPACE POLICY

Policy directions for government departments, support of and

relationships with, the commercial, research and education sectors.

The roles and responsibilities of the government departments

with a stake in the nation's space sector including their inter-

relationships

Enunciates a nation's goals in outer space and the means by

which they will be achieved.

Expresses national security, civil, commercial, and scientific

interests and activities in the space environment.

Includes implementation guidelines for the nation's individual

national security (military, intelligence), civil, and commercial space

communities.

GENERAL CHARACTERISTICS OF

NATIONAL SPACE POLICY (CONT)

Intended for multiple audiences, including the national

legislative body, the general public, foreign allies, adversaries,

third parties such as the United Nations and non-governmental

organizations (NGOs).

National space policy for the United States expresses

national security, civil, commercial, and scientific interests and

activities in the space environment.

National Space Policy may encompass several Presidential

directives most of which classified but may have unclassified

portions for public release.

GENERAL CHARACTERISTICS OF

NATIONAL SPACE POLICY (CONT)

When crafting a national space policy, policy-makers in the

United States consider many factors including:

The nation's space capabilities

The emerging international security environment

How adversaries with asymmetric capabilities and

associated priorities might relate to the National Space Policy.

How other countries might find the National Space Policy

relevant to their security interests, and

How the United States can shape the international space

regime to achieve its policy objectives.

GENERAL CHARACTERISTICS OF

NATIONAL SPACE POLICY (CONT)

Depending on its intended audience, there may be classified

and unclassified versions of the National Space Policy, both of

which are used to direct executive agencies involved in the

nation's outer space activities and guide the Congress to create

laws that are consistent with the National Space Policy's edicts.

First Preliminary National Space Policy enacted by the

Eisenhower Administration on June 20, 1958 by NSC 5814.

Each successive Administration has articulated its own National

Space Policy in one form or another.

Until the Administration of George H.W. Bush, National

Space Policies were all classified. Since then, there have been

unclassified versions created for public consumption.

NATIONAL SPACE POLICY AND

INTERNATIONAL SPACE LAW

National space policy affects and helps shape the international legal

environment. For example, the Eisenhower Administration took up

the issue of the delimitation between the atmosphere and outer

space in NSC 5814.

“Although the successful orbiting of earth satellites has raised

a question of national sovereignty ad coelum and as to the

doctrine of “freedom of space”, the United States has not

recognized any upper limit to sovereignty. In order to maintain

(a) flexibility in international negotiations with respect to all

uses of “space” and pending an international control

agreement, (b) freedom of action with respect to the military

uses of “space”, the United States has taken no public position

on the definition of outer space.” (NSC 5814, ¶ 11.)

NATIONAL SPACE POLICY AND

INTERNATIONAL SPACE LAW

NSC 5814 continues to say in Paragraph 36:

“The problem of legal definitions is unresolved. As indicated

above, there is yet insufficient basis for legally deciding that air

space extends only so far and no farther; that outer space

begins at a given point above the earth. Because for some time

to come, at least, activities on the earth and in the air space,

many legal problems with respect to space activities may well

be resolved without the necessity of determining or agreeing

upon a line of demarcation between air space and outer space.

If, by analogy to the Antarctic proposal of the United States,

international agreement can be reached upon permissible

activities in space and the rules and regulations to be followed

with respect thereto, problems of sovereignty may be avoided or

at least deferred.

NATIONAL SPACE POLICY AND

INTERNATIONAL LAW (CONT)

The position of the United States on this issue remains relatively

unchanged. Consider the U.S. statement to COPUOS in 2012:

“…on matters relating to the definition and delimitation of outer space. As

we have stated on previous occasions, the United States is of the view that

there is no need to seek a legal definition or delimitation for outer space.

The current framework has presented no practical difficulties and indeed,

activities in outer space are flourishing. Given this situation, an attempt to

define or delimit outer space would be an unnecessary theoretical exercise

that could potentially complicate existing activities and that might not be

able to adapt to continuing technological developments. The current

framework has served us well, and we should continue to operate under it

until there is a demonstrated need and a practical basis for developing a

definition or delimitation. This Subcommittee can operate most effectively

and make its most significant contributions when it focuses its attention on

practical problems, which are not apparent here.”

NATIONAL SPACE POLICY AND

INTERNATIONAL SPACE LAW

(CONT)

National space policy also sets forth how we engage the

international legal community with seeking legal solutions for

international issues. Take for example an excerpt from the 2006

National Space Policy of the Administration of President George W.

Bush:

“The United States will oppose the development of new legal regimes or

other restrictions that seek to prohibit or limit U.S. access to or use of

space. Proposed arms control agreements or restrictions must not impair

the rights of the United States to conduct research, development, testing,

and operations or other activities in space for U.S. national interests…”

NATIONAL SPACE POLICY AND

INTERNATIONAL SPACE LAW

(CONT)

Contrast the engagement policy of the Bush Administration’s 2006

Policy with the current National Space Policy:

“Develop Transparency and Confidence-Building Measures.

The United States will pursue bilateral and multilateral

transparency and confidence-building measures to encourage

responsible actions in, and the peaceful use of, space. The

United States will consider proposals and concepts for arms

control measures if they are equitable, effectively verifiable, and

enhance the national security of the United States and its

allies.”

.

NATIONAL SPACE POLICY AND

PRIVATE SPACE

Arguably, the Eisenhower Administration’s space policy fostered

the environment for private space activities.

This is demonstrated with the creation and privately-sponsored

launch of Telstar-1 and Telstar-2 by Bell Labs and AT&T.

AT&T planned to launch a constellation of 55 Telstar satellites in

elliptical orbits ranging from low-earth orbit to medium-earth-orbit

to give world-wide coverage.

Two Telstar satellites were launched at the beginning of the

Kennedy Administration.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The Kennedy Administration derailed private space initiatives

out of concern that AT&T would have a monopoly on satellite

communications

Alternatively, the Administration chose an international route for

satellite communications and developed important and foundational

policies for communications satellites with the Communications

Satellite Act of 1962.

This policy shift focused on international efforts for satellite

communications and also led to the establishment of the publicly

regulated Comsat Corporation, which was the precursor to the

quasi-governmental International Telecommunications Satellite

Consortium (INTELSAT).

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

This policy shift effectively stopped the concept of private space

until it was revived by the Reagan Administration.

While private space, in particular AT&T’s plans for satellite

communication, was disrupted by this change in space policy, the

introduction of the Comsat Corporation and INTELSAT led to the

concept of using geosynchronous slots to place communication

satellites .

This allowed INTELSAT to obtain world-wide

telecommunication coverage with three satellites instead of the fifty-

five envisioned by AT&T with Telstar.

The Kennedy Administration’s change in space policy came full

circle when INTELSAT became a private company in 2001.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The Reagan Administration's non-public National Space Policy (National

Security Decision Directive Number 42, July 4, 1982) reintroduced the

concept of private space activities. Paragraph III(B) states:

Private Space Sector Participation: The United States Government will provide a

climate conducive to expanded private sector investment and involvement in civil

space activities, with due regard to public safety and national security. Private

sector space activities will be authorized and supervised or regulated by the

government to the extent required by treaty and national security.

This Policy led to Congress passing the Commercial Space Launch Act of

1984, which was signed into law by President Reagan on October 30, 1984.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The Administration of President George H.W. Bush continued to support private space

activities in the first National Space Policy (NSD 30 (NSPD 1)), which was publically

released on November 16, 1989.

Commercial Space Policy

The United States government shall not preclude or deter the continuing

development of a separate non-governmental Commercial Space Sector.

Expanding private sector investment in space by the market-driven Commercial

Sector generates economic benefits for the Nation and supports Governmental

Space Sectors with an increasing range of goods and services. Governmental

Space Sectors shall purchase commercially available space goods and services to

the fullest extent feasible and shall not conduct activities with potential

commercial applications that preclude or deter Commercial Space Sector space

activities except for national security or public safety reasons. Commercial Sector

space activities shall be supervised or regulated only to the extent required by

law, national security, international obligations and public safety.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The Administration of President George H.W. Bush built on its support of commercial

space with Commercial Space Launch Policy (National Space Policy Directive 2,

September 5, 1990.) This publically released directive had amongst its findings:

That the President approved a National Space Policy that encourages

development of a Commercial Space Sector.

Recognized that a commercial space launch industry can provide many

benefits to the U.S., including benefits to U.S. national security.

Required government satellites to be launched on U.S. manufactured launch

vehicles, unless the President makes a specific exemption.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The Administration of President William J. Clinton continued its support of private

space in its National Space Policy (PDD/NSC 49 (PDD/NSTC 8), September 19,

1996. Among its provisions for Commercial Space Guidelines:

Support and enhance U.S. economic competiveness in space activities while

protecting national security interests.

Pursue commercial space objectives without the use of direct Federal

subsidies.

Provide access to appropriate U.S. space-related hardware, facilities and data.

Consistent with national security, provide timely transfer of government

developed space technology.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

The National Space Policy (August 11, 2006) of President George W. Bush supersedes

the September 19, 1996 Policy but continues its support of private space.

Commercial Space Guidelines It is in the interest of the United States to foster

the use of U.S. commercial space capabilities around the globe and to enable a

dynamic, domes tic commercial space sector. To this end, departments and

agencies shall:

• Use U.S. commercial space capabilities and services to the maximum practical

extent; purchase commercial capabilities and services when they are available in

the commercial marketplace and meet United States Government requirements;

and modify commercially available capabilities and services to meet those United

States Government requirements when the modification is cost effective;

• Develop systems when it is in the national interest and there is no suitable, cost

effective U.S. commercial or, as appropriate, foreign commercial service or

system that is or will be available when required;

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

Continue to include and increase U.S. private sector participation in the

design and development of United States Government space systems and

infrastructures;

Refrain from conducting activities that preclude, deter, or compete with U.S.

commercial space activities, unless required by national security or public safety;

Ensure that United States Government space activities, technology, and

infrastructure are made available for private use on a reimbursable, non-

interference basis to the maximum practical extent, consistent with national

security; and

Maintain a timely and responsive regulatory environment for licensing

commercial space activities and pursue commercial space objectives without the

use of direct Federal subsidies, consistent with the regulatory and other

authorities of the Secretaries of Commerce and Transportation and the Chairman

of the Federal Communications Commission.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

President Barack Obama continues the support of private space in its June 28,

2010 National Space Policy:

Purchase and use commercial space capabilities and services to the maximum

practical extent when such capabilities and services are available in the

marketplace and meet United States Government requirements;

Modify commercial space capabilities and services to meet government

requirements when existing commercial capabilities and services do not fully

meet these requirements and the potential modification represents a more cost-

effective and timely acquisition approach for the government;

Actively explore the use of inventive, nontraditional arrangements for

acquiring commercial space goods and services to meet United States

Government requirements, including measures such as public-private

partnerships, hosting government capabilities on commercial spacecraft, and

purchasing scientific or operational data products from commercial satellite

operators in support of government missions;

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

Develop governmental space systems only when it is in the national interest

and there is no suitable, cost-effective commercial or, as appropriate, foreign

commercial service or system that is or will be available;

Refrain from conducting United States Government space activities that

preclude, discourage, or compete with U.S. commercial space activities, unless

required by national security or public safety;

Pursue potential opportunities for transferring routine, operational space

functions to the commercial space sector where beneficial and cost-effective,

except where the government has legal, security, or safety needs that would

preclude commercialization;

Cultivate increased technological innovation and entrepreneurship in the

commercial space sector through the use of incentives such as prizes and

competitions;

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

Ensure that United States Government space technology and infrastructure

are made available for commercial use on a reimbursable, noninterference, and

equitable basis to the maximum practical extent;

Minimize, as much as possible, the regulatory burden for commercial space

activities and ensure that the regulatory environment for licensing space activities

is timely and responsive;

Foster fair and open global trade and commerce through the promotion of

suitable standards and regulations that have been developed with input from U.S.

industry;

Encourage the purchase and use of U.S. commercial space services and

capabilities in international cooperative arrangements; and

Actively promote the export of U.S. commercially developed and available

space goods and services, including those developed by small- and medium-sized

enterprises, for use in foreign markets, consistent with technology transfer and

nonproliferation objectives.

NATIONAL SPACE POLICY AND

PRIVATE SPACE (CONT)

Synopsis of the role of National Space Policy in private space activities.

Starting with the Reagan Administration, National Space Policy creates a policy

environment where a private interest for non-governmental actors to perform outer

space activities can be granted (no 10th Amendment Constitutional right to private

space activities.)

Builds upon and expands the policy environment to define and encourage the

ability of private space activities to proliferate.

Encourages Congress to pass legislation to refine the scope and supervision of the

private interest created under National Space Policy, including delegating to proper

executive agencies to implement regulations and supervise private space activities.

The current Policy deviates from the Clinton and Bush Policies and allows direct-

subsidies for private subsidies.

OTHER NATIONS WHO HAVE OR

WILL HAVE SPACE POLICIES

United States United Kingdom

European Union Germany

France Italy

Russia China

Japan Australia

Republic of Korea (South

Korea)

South Africa

United Arab Emirates

(announced March 2015)

Canada (Framework)

FUTURE NATIONAL SPACE

POLICY

Areas That Future Space Policy May Address

Space debris remediation by not only making it policy to pursue space debris

removal but also to foster an international legal and policy environment that will

encourage space debris removal without international legal and political

entanglements.

Future commercial resource development from asteroids, the Moon, etc.

Future plans for long-duration missions on celestial bodies and potential

settlement.

Future national and outer space security efforts and issues concerning defensive

and offensive capabilities.

International engagement to shape the legal and geopolitical arena.

FINAL THOUGHTS

Space policy is the foundation for a nation’s outer space activities.

The sign of a truly space-faring nation is usually characterized by the optics of

their activities and their technological prowess.

However, as more nations become involved in outer space activities, the mark of a

truly space-faring nation that shows it is committed is one that has invested the time

and resources to articulate a space policy.

A space policy articulates to the geopolitical community that a nation intends to be

a significant player in outer space activities. Additionally, internal policies developed

to augment an external space policy will help focus a nations activities and make its

goals more coherent and the means to achieve those goals more compelling.

REFERENCES & FURTHER

READING

Presidential Decisions: National Security Council Documents, George Marshall

Institute

Dr. Dana J. Johnson, “National Space Policy: Opportunities and Challenges in

Shaping the International Space Regime,” in Air Force Space Command High

Frontier: The Journal for Space & Missile Professionals , Volume 3, Number 2, pp. 50-

56.

AN ANALYSIS OF THE SPACE POLICIES OF THE MAJOR SPACE FARING

NATIONS AND SELECTED EMERGING SPACE FARING NATIONS By Graham

Gibbs

Michael J. Listner, Op-ed | UAE Moving To Become a Player in Outer Space

Activities, Space News, May 11,2 2015.

BIOGRAPHY

Michael Listner is the founder and principal of Space Law and Policy Solutions. He is

a 1998 graduate of Franklin Pierce University and earned his JD from Regent

University School of Law in 2001. Michael is member of the New Hampshire Bar,

and is admitted to practice before the state and federal courts of that state. Michael is

also serves as peer-reviewer for Space Policy Journal.